Attorney General Mark Herring announces the state government will oppose its own marriage amendment only days before the start of oral arguments in a pivotal federal case.

RICHMOND — Virginia’s new attorney general announced Thursday that he will not uphold the commonwealth’s constitutional definition of marriage and instead will join same-sex “marriage" proponents seeking to override the amendment in federal court.

Virginia Attorney General Mark Herring filed legal papers in support of one of two legal challenges to a constitutional amendment approved by 57% of voters in 2006, which defines marriage as the union of a man and a woman.

“I swore an oath to both the United States Constitution and the Virginia Constitution. After thorough legal review, I have now concluded that Virginia’s ban on marriage between same-sex couples violates the Fourteenth Amendment of the U.S. Constitution,” Herring stated in a news release.

The newly elected Democratic attorney general based his argument on the grounds that “marriage is a fundamental right being denied to some Virginians,” and the amendment “unlawfully discriminates on the basis of both sexual orientation and gender.”

Herring added that the clerks of the circuit courts of Norfolk and Prince William Counties have both legal standing and “well-qualified counsel” to carry on the defense of Virginia’s marriage amendment, but without his help.

Herring’s move comes just days before oral arguments are scheduled for Jan. 30 in the Bostic v. Rainey case, a federal lawsuit that challenges the constitutionality of Virginia’s marriage amendment. The case is being argued by Ted Olson and David Boies, the lawyers who successfully challenged California’s constitutional amendment defining marriage as the union of a man and a woman.

Attorneys with the American Civil Liberties Union (ACLU) and Lambda Legal Defense welcomed the attorney general’s change of sides “as a critical and important development,” saying they expected he would file legal papers supporting their similar lawsuit in Harris v. McDonnell.

“With the attorney general on our side, we hope that we can soon count Virginia among the 17 other states where same-sex couples have the freedom to marry,” said Amanda Goad, staff attorney with the ACLU Lesbian, Gay, Bisexual and Transgender Project.

However, Peter Sprigg, a senior policy analyst with the Family Research Council, said that Herring’s decision might harm same-sex “marriage” advocates’ chances that this particular challenge to Virginia’s marriage amendment would lead to a sweeping national redefinition of marriage.

“They will not get that unless and until [the U.S. Supreme Court] gets a case where one of these amendments has been vigorously defended by the state itself,” he said.

Sprigg pointed to last June’s Prop. 8 decision, where the U.S. Supreme Court refused to rule on California’s marriage amendment because it deemed only the state, not the amendment’s backers, had the legal standing to defend the California Constitution.

Catholic Reaction

The Catholic bishops of Virginia reacted strongly against Herring’s decision on both legal and moral grounds.

“Virginia voters put this provision in the [state] Constitution, and no politician should be able to reverse the people’s decision,” said Bishop Paul Loverde of the Diocese of Arlington and Bishop Francis DiLorenzo of the Diocese of Richmond in a joint statement. “We call on the attorney general to do the job he was elected to perform, which is to defend the state laws he agrees with, as well as those state laws with which he personally disagrees.”

The bishops added that Virginia’s voters recognized that marriage as the union of a man and a woman is “an institution whose original design predates all governments and religions.”

“The government of the Commonwealth of Virginia should preserve and defend this original design,” they said, “because the constituent majority that supported the constitutional amendment understands the unique benefit that marriage between a man and a woman provides to individual families and society at large.”

The Catechism of the Catholic Church states the “matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring” (1601).

But Herring’s brief on the state’s change of position rejected “the rationale [which] reduces the institution of marriage to an instrument for ‘responsibly’ breeding ‘natural’ offspring.”

The attorney general stated that marriage was fundamentally “an enduring union between two people.” He cited the U.S. Supreme Court’s 1968 ruling in Griswold v. Connecticut, which declared states could not block the sale of contraceptives to married couples and described marriage as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”

A Pattern of ‘Lawlessness’

Brian Brown, president of the National Organization for Marriage, said Herring was following an increasing pattern of “lawlessness” set in motion by courts and attorneys general in which “those tasked with upholding the law are breaking it.”

He pointed to the “legal quagmire” in Utah, where a federal judge threw out the state’s marriage amendment and ordered that same-sex couples be given marriage licenses immediately, without waiting for the appeals process to resolve the case. The U.S. Supreme Court finally intervened and issued a stay on same-sex “marriages” being contracted in the state, but by then, 1,300 same-sex couples had obtained Utah marriage licenses. U.S. Attorney General Eric Holder then announced that the federal government would recognize those same-sex unions as marriages for federal purposes, even though the state of Utah contends they are not valid.

Brown said Herring’s decision not only to refuse to defend the Virginia Constitution, but to join in the lawsuit, was an “impeachable offense.”

“The attorney general has to uphold the laws of the commonwealth, but especially the [state] constitution,” he said. “Here, we have Mark Herring swearing to uphold the constitution, and then a few weeks later, he turns around and breaks that very oath.”

Herring spokesman Michael Kelly, however, said that the attorney general “is sworn to support both the U.S. Constitution and Virginia Constitution, and when the two are in conflict, the U.S. Constitution has supremacy.”

Kelly said Herring is involved in the case because he believes he is “obligated to fight a law that violates the constitutional rights of Virginians.”

But Sprigg pointed out that neither the text of the U.S. Constitution nor Supreme Court precedent supports Herring’s assertion that the two constitutions are in conflict on marriage.

“The Supreme Court was invited to do that in last year’s California case, but they declined,” he said.

“In the absence of the clear and explicit text of the U.S. Constitution and the absence of a controlling precedent from the U.S. Supreme Court, the attorney general has an obligation to continue his defense of Virginia law,” he said.

The Family Research Council has advocated passage of the State Defense of Marriage Act, where federal law would respect how each state defines marriage. The National Organization for Marriage has made renewed calls for a constitutional amendment defining marriage as the union of a man and a woman.

Executive-Branch Tyranny?

Brown said people on both sides of the “critical” marriage debate should be alarmed by the bigger picture, where the political preferences of the state’s executive officers determine which part of the state’s laws or constitution gets a vigorous defense in court.

“If that is your form of government, there is no sense in calling yourself a republic or a democracy,” Brown said. “What you’ve done is given the executive branch the tyrannical authority to decide which laws they will defend and which laws they’ll not defend. In so doing, they essentially nullify any law they don’t like, and that is what is happening here.”

Comments

Lisakaiser, God commands us not to indulge in same sex relations, so in some respects it is a real spiritual cancer, but I was not saying that - I was saying your logic that just because it is supposedly few in number( but us sadly spreading because if the moral collapse) it can do no harm. That is untrue. Cancer cells can be few in number compared to all the cells in the body and can still kill the whole body. You may delude yourself but what you say about not affecting society is untrue and my freedom has definitely been affected by the homosexual agenda. So has the religious freedom of our military and our Christian business people. Our children are being indoctrinated to moral wrongs. And it is all because of pride, the inability to admit something I’d wrong when you are not attracted to the sex your body was meant to mate with.

Posted by Dan on Friday, Jan 31, 2014 4:56 PM (EST):

It should be clear the Va. marriage law denies to some the rights protected for others. This is a clear violation of the equal protections under the law promised in the founding documents and required under Article 4, the 5th, and 14th ammendments, as well as a violaton of the Golden Rule.

The title of the article is false. The AG has no obligation to defend an unconstitutional law. Those opposed to equality ignore the distinction between upholding a law and defending it in court. The AG is still upholding the law. He has no obligation to defend an unconstitutional law in court. His duty is to oppose it.

Posted by lisakaiser on Friday, Jan 31, 2014 10:13 AM (EST):

Pam,

Legal recognition of the constitutional right of gay Americans to marry each other is not a “cancer” and certainly does not impact you in any way. The recognition of the constitutional right of gay Americans to marry each other does not in any way infringe upon any of your rights. You are free to marry, to remain in your marriage, to have children, to raise them as RCs, to send them to RC schools, you are free to say whatever you want about gay people, you are free not to associate with gay people, you are free to not welcome gay people into your home you are free to not marry a gay person, if you are hire people at your workplace you are free not to hire gay people(and you would be free to fire someone just because they are gay) because there is no federal law prohibiting such discrimination, you are free to not do business with any company that is owned by gay people or that supports the equality of gay people. You remain free to express whatever prejudice you wish via speech, writing,social media, etc.

The legal recognition of the right of gay Americans to marry each other does not harm you or anyone else in any way. And as I pointed out above, marriages between gay Americans will not impact our nation, Western civilization, the world or the world’s population in any way, as gay people do have children (there have been gay people for as long as there have been straight people,and we still have managed to create a population of 7 billion people on the planet).

Posted by Pam on Friday, Jan 31, 2014 1:14 AM (EST):

Lisakaiser, Your logic is not my thinking so don’t presume my motive and your logic is exceedingly faulty. By your logic a little cancer is OK as long as it doesn’t cover the whole body.

Posted by lisakaiser on Thursday, Jan 30, 2014 3:29 PM (EST):

Pam,

There are now more than 7 billion people on the planet—7 billion! Recognizing the right of gay people (who are a decided demographic minority) is not going to put the continued existence of the human race at risk! Do the math and figure out what it means that there are 7 billion people on the planet.

Secondly, You do know that gay people can and do reproduce/have children, right? Gay people sometimes have sex with a partner of the opposite sex and a child is born (and sometimes that occurs within the context of a “traditional” marriage). Some gay women give birth using artificial insemination. Some gay men father children by donating sperm for artificial insemination. so yes, now you will say that bringing children into the world is wrong because the RCC does not approve of how the child came into the world.

You object because you think gay people do not have children. And that allowing gay people to marry each other will cause the collapse of the human population! Then you object when gay people do have children because its not the “right” way to have children. You object because you think gay people are not honoring the commandment to be fruitful and multiply. Then when gay people are fruitful and multiply, you object because they are reproducing!

Gay people marrying each other will not cause the collapse of Western civilization, the collapse of marriage (straight people are already messing up marriage), will not damage children, will not damage our nation or the world.

Stop bullying and hating gay people. Nothing gay people are doing is harming you, the nation, civilization or the world.

Posted by Pam on Thursday, Jan 30, 2014 12:23 PM (EST):

Graeme, Do you trust the integrity of our voting systems? So many are computerized now. Someone has standing to challenge or remove the officials breaking the law or not executing their sworn duties. We are being handed over by people who are crying about the problem on one hand but not using the authority they have been given to resolve it on the other and the same is true with the election process. Agenda driven people are taking away our votes and our rights.

Posted by Pam on Wednesday, Jan 29, 2014 10:27 PM (EST):

When highly educated men and women are in complete denial that there are huge differences in male/ female relationships and same sex relationships, it just becomes a war. They don’t care about anything but getting their own way. Enough is enough. Stand up for the truth that homosexuality is disordered!!! What government promotes its own peoples’ demise?

Posted by Graeme Reid on Wednesday, Jan 29, 2014 9:23 PM (EST):

Brian Brown is surely on the mark implying that if political preferences and self imposed tyrannical authority of executive officers etc., determine laws or constitution to be defended or not defended…, then “there is no sense in calling yourself a republic or a democracy,”
Political parties for starters, are not even mentioned let alone validated in the constitution.
Unelected elite who control parties, can accordingly be moral degenerates who can dictate evil and oppose good. Such people can down the line, ensure that others of similar immoral standards, are appointed into high positions to carry out their agendas - which seems to be the situation here. So a basic problem is that there is an unconstitutional two main party system whereby the also elite controlled secular media, brainwashes the population to believe that this two main political party system it supports, is constitutional - which it is not!
The logically fair system, should,—I mean, must surely be, that people in each electorate or area, must meet to choose their own candidates to vote for at election time - rather than have elite who have agendas against the nation and against the common good, do it for them. In this way, candidates who do not oppose the constitution, and do not oppose the common good, can far more easily become the politicians who are depended upon. And rewarded twisters and profiteers would far less likely rise up to dictate and defend the evil they are obviously appointed and paid to dictate and defend.
In that way the just majority could have it’s way rather than the extremist minorities the elite promotes to gain power over goodness which is what Satan tried with Jesus who rejected it.

Posted by kf on Wednesday, Jan 29, 2014 7:30 PM (EST):

The 14th amendment to the US Constitution just guarantees equal protection under the law. To interpert the ban on same-sex marriage violates this is a stretch. Catholic Marriage (and Christian marriage) is defined as the union between a man and a women. The United States view on marriage as one between same-sex also is a disgrace and we must stand up in Defense of the Natural Law. We are living like the Israelites who lost their inheritance. We must wake up and attone for our sins, before our nation is struck down or we become slaves to another nation.

Posted by Stilbelieve on Wednesday, Jan 29, 2014 5:01 PM (EST):

The only people you have to “thank” for this attack on traditional marriage in VA, now, is church-going Catholics, including the clergy, who not only endorse the political party, from which this new AG and governor come, but vote for them as well. Catholics give the Democratic Party the electoral power to attack God’s two greatest gifts - life and traditional marriage- as well as His will on earth that they pray for in the Lord’s Prayer in every Mass standing before Our Lord in the Holy Eucharist.

Posted by Robert A.Rowland on Wednesday, Jan 29, 2014 4:10 PM (EST):

The Supreme Court of the United States does not rule over the Creator that our Founders once trusted.

Posted by lisakaiser on Wednesday, Jan 29, 2014 3:15 PM (EST):

Bravo to the voters of Virginia and to Mark herring who are standing up for the fundamental and constitutional rights of gay people. If Hillary runs she will win as the GOP has only out-touch extremists to run as candidates.

Posted by toan on Wednesday, Jan 29, 2014 12:29 PM (EST):

I don’t know whether the “Virginia Attorney General Mark Herring” understands the Constitution of USA, and understands what is “marriage”.

Posted by Tom in AZ on Wednesday, Jan 29, 2014 12:28 PM (EST):

@Jerry: True colors showing a bit, there.

**comment edited***

Posted by Stephen Trost on Wednesday, Jan 29, 2014 11:57 AM (EST):

Let the Church and its people forget about this issue. Even the Pope does not speak about same gender marriage. The civil marriage has absolutely NOTHING to do with the RC Church. If you are against same gender marriage simply do not marry someone of your same gender. It is very un-Christ like to try to deny civil benefits to same gender married couples merely because you do not like or tolerate them. Christ came and shed hid blood for all people not just those with whom you like or agree with.

Posted by Jane on Wednesday, Jan 29, 2014 11:20 AM (EST):

If those who swear to uphold the law can decide without any intervention from the appropriate branches of government which laws they “feel” are unjust, then we have no rule of law at all. Since when do elected officials have any authority to decide which laws to uphold and which to ignore? It is a slippery slope we are on. Why not ignore bank robbers, murderers, thieves, and any other offenders they choose to? We are in a bad way in this country, the result of a relativistic secular humanism, and only through prayer, fasting, and political activism can the rule of law be restored.

Posted by lisakaiser on Wednesday, Jan 29, 2014 10:42 AM (EST):

Susan,

Bravo to Mark Herring who stand for the US Constitution and for the rights of gay Americans. I hope Hillary Clinton runs for President in 2016, because she will win. Why? because she is bright, stands for America, for the US Constitution and for the middle class. And because the GOP has turned into the party of extremist nutjobs who want to foist their craziness on our society. Americans know better—which why we made the excellent choice for making Barack Obama our President for 8 yrs.

Posted by Mike Brooks on Wednesday, Jan 29, 2014 10:31 AM (EST):

The SCOTUS in the Windsor case held that there was no legitimate interest served by DOMA and that only animus could have been the reason for the law in the first place. Nonsense. The ills of homosexuality and homosexual acts to society are are well-known. Redefining marriage promotes those sordid acts. The Family Research Council discussed the top 10 harms of same-sex “marriage:”

Honestly, I don’t know where the SCOTUS justices’ head were in this case, although I believe that there is an argument that the decision is limited to the enactment of DOMA; that is, that although DOMA may be deemed to have been enacted because of animus, that does not preclude the enactment of a law that limits marriage to a man and a woman for other legitimate reasons.

Posted by Jennifer on Wednesday, Jan 29, 2014 10:21 AM (EST):

Two adults happiness does not trump a child’s right to a mother and a father. The bigotry against children is horrendous. I hear adults talking about children as being inconvenient; mistakes; and burdens when they’re unwanted, or when wanted..treated like property any adult should have a right to have. No one has a right to another person, that’s called “slavery”. Now the one institution that was left to protect children’s rights is being completely put under, as if divorce wasn’t enough of a price to make kids pay. Children, the most vulnerable and weakest among us. Not even afforded the right to live in some instances, all for the sake of alleviating the consequences of the sins of the adults. We have some of the most immature, self-centered, myopic “adults” living amongst us. We wont be able to fix this until these generations pass, short of a miracle at this point. God help us.

Thanks, Catholic voters, who turned Virginia into an abyss of immorality and an affront to natural law. Ms Clinton in 2014 should be the cherry on the sundae. Thanks.

Posted by Susan M JMJ+ on Tuesday, Jan 28, 2014 8:20 PM (EST):

Too bad Catholic Church. Another election and the sides were clearly drawn: Culture of Life v Culture of Death. I live in Virginia, attend Holy Mass Tues, Wed, Fri, and Sunday Vigil Mass. Not once in the past 7 years have I heard a homily on the state of one’s immortal soul if they supported the Culture of Death. There was much talk of social justice, justice and peace, the next KoC monthly social is… and put more in the basket please ‘cause you’re so rich.
Keep up the good work!

Posted by Jerry on Tuesday, Jan 28, 2014 7:38 PM (EST):

Okay, some of you need to get this. The US Constitution supercedes any state constitution. The Supreme Court of the United States has ruled that the federal recognition of marriage equality supercedes any states’ denial of that. No state authority may support even his/her own state’s support of bigotry, prejudice or discrimination over what the federal law says. State legal authorities must side with the US Constitution, rather than their state laws. And last but not least, even if a state has a law voted in by a majority who support discrimination, bigotry and prejudice, this is America. America is not a democratic nation. It is a Constitutional nation that limits democracy for the sake of the rights of every American. No one, in states or whatever, get to vote on other’s Constitutionnal rights. The US Constitution determines that. If that weren’t true, then us secular Atheists would get to round up you NCR Cathlics and ship you off, as we should, since this would retain our American principles. But we can’t because of the Constitution. Be grateful for that. Your same-sex neighbrs can now marry because of the Constitution. And by that same Constitution, we can’t round you up and get rid of you.

Posted by AJ on Tuesday, Jan 28, 2014 5:35 PM (EST):

Long live natural order. Every child has a right to be loved and cared for by both his mother and father. This is what marriage, not simply adult happiness

Posted by Don on Tuesday, Jan 28, 2014 4:08 PM (EST):

Our constitutional form of government has come completely undone. It is no longer “constitutional” in any real sense. We have become so un-moored from the plain language / original intent of the Constitution that there are no longer any objective standards.

The law “is” or “is not” whatever the Justices say it “is” or “is not” - period. And so all judicial decisions are merely politically driven and based on the Justices’ political preferences. If something is found to be “unconstitutional” the best we can say is that it is so because the Justices disagreed with the policy behind the law.

Likewise, enforcement (or defense) of the law has become entirely based on the political preferences of the executive branch. The President’s refusal to defend DOMA is of a piece with his unilateral “enactment” of the DREAM act, or his unilateral waiver of certain portions of the ACA without action from Congress, or his unilateral waiver of the work requirements of welfare.

Posted by Don on Tuesday, Jan 28, 2014 3:52 PM (EST):

Folks, this fight is O-V-E-R. It was over when Justice Kennedy held that the only possible basis for Congress votiing for the DOMA was irrational animus and prejudice toward gays. Courts all over the Country are adopting his language and using it to strike down state constitutional amendments defining marriage as between a man and a woman. Utah, Oklahoma, next Virginia then Texas. It is over. It was over the day the DOMA opinion was released, as Justice Scalia rightly noted in his dissent. It was ingenious because Kennedy was able to give lower courts the “blueprint” for overruling traditional marriage laws in every state in the Union without having to do it himself. It is time to move on and focus on preserving the right of private institutions like the Church and related entities to not recognize gay marriages. Because that’s what is coming next - an attempt to force everyone to recognize them under penalty of criminal sanctions, including both fines and prison. Next you will see private organizations - even religious ones - fined out of existence if they refuse to recognize and provide service and provide benefits to same-sex couples. You already have the Colorado bakery case and the New Mexico photographer case. You have the phenomenon in Seattle where even Catholic students, egged on by a Catholic priest, protest the termination of a school administrator who “married” his partner in violation of his contract. There will be a great apostacy - a massive rejection of the teaching of the Church - because the societal pressure will be too great for most people to withstand.

Posted by Brian on Tuesday, Jan 28, 2014 3:43 PM (EST):

Watching “The World Over,” on EWTN last night, and a interview with the former AG of Virginia, who said, Herring voted for the marriage amendment when he was a member of the Virginia Congress!

Posted by lisakaiser on Tuesday, Jan 28, 2014 3:07 PM (EST):

Bravo, to AG Mark Herring for standing up for justice and human dignity! Human rights are not subject to votes. Hopefully, the US Supreme Court will uphold the rights of gay Americans to marry persons of the same-sex and thereby striking the state constitutions that discriminate against some citizens.

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